Opinion
198 MDA 2021
04-19-2022
COMMONWEALTH OF PENNSYLVANIA Appellant v. SCOTT KENNETH WILEY
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered January 5, 2021 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002762-2019.
Joseph D. Seletyn, Esq.
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.[*]
MEMORANDUM
LAZARUS, J.:
The Commonwealth of Pennsylvania appeals from the order, entered in the Court of Common Pleas of Berks County, granting, in part, Scott Kenneth Wiley's motion for writ of habeas corpus and dismissing the charge of third-degree murder. After careful review, we affirm.
On March 11, 2019, Boyertown Police Corporal Brian A. Myers was dispatched to the home of the victim, Wiley's ex-girlfriend, Farrah Wertz, in response to a domestic disturbance report. When Corporal Myers arrived at the scene, he observed Wertz suffering from an injured ankle. Wertz alleged that, while Wertz and Wiley were engaged in a heated argument, Wiley came up from behind her and used his legs to sweep her off her feet, causing her to fall and injure her ankle. See Affidavit of Probable Cause, 4/4/19, at ¶ 4. The move Wiley used, often referred to as a "leg sweep" in the martial arts world, occurs "when one person takes their leg and sweeps the other person's leg out from under them taking them to the floor." N.T. Omnibus Pretrial Hearing, 2/12/20, at 54. Corporal Myers arrested Wiley at the scene. Soon thereafter, an emergency medical technician (EMT) evaluated Wertz and transported her to Pottstown Hospital for treatment. On March 15, 2019, Wertz underwent ankle surgery at Phoenixville Hospital for her injury.
Two weeks later, paramedics responded to a call at Wertz's home; when the paramedics arrived, they found Wertz in cardiac arrest. Wertz was transported to Lehigh Valley Hospital and, later, pronounced dead. Doctor Samuel Land, Chief Forensic Pathologist at Forensic Pathology Associates, performed an autopsy on Wertz and determined that the cause of death was "[p]ulmonary [t]hromboemoboli due to deep venous thrombosis complicating blunt force trauma to [the] right lower extremity." Id. at 6, 13. Wiley was subsequently charged with simple assault, aggravated assault, involuntary manslaughter, and third-degree murder.
The pulmonary thromboemoboli that Dr. Samuel Land refers to are "massive blood clots that had traveled from [Wertz's] leg to her heart and lungs." Id. at 15. The clots "block[ed] the flow of blood from the rest of the body to the lungs," and caused Wertz to suffer a "suffocation type death." Id. The blood clots formed in Wertz's leg after she was immobilized by the blunt force trauma she received during the altercation with Wiley. Id. at 19.
Before the March 11th incident, Wiley had taken Tae Kwon Do classes for three months with instructor Donald Ellixson, who owns his own martial arts studio. Ellixson testified that he instructed all of his students that leg sweeps and take-downs are unsafe and should not be used. According to Ellixson, Wiley had prior martial arts experience before taking classes with him.
On September 24, 2019, Wiley filed a pre-trial habeas corpus motion claiming that the Commonwealth did not have sufficient evidence to establish a prima facie case of third-degree murder, specifically arguing that he had not caused the victim's death with malice in violation of 18 Pa.C.S.A. § 2502(c). On February 12, 2020, and July 31, 2020, the court held omnibus pretrial hearings. On January 5, 2021, the trial court granted Wiley's habeas motion and dismissed the charge of third-degree murder. The court found that the Commonwealth had failed to make out a prima facie case of third-degree murder-specifically with regard to the element of malice.
Eight individuals testified at the omnibus pretrial hearings: Doctor Samuel Land, the Forensic Pathologist who performed an autopsy on Farrah Wertz; William Peterson, a Boyertown Ambulance EMT who treated Wertz's injury on March 11, 2019; Corporal Myers, Wiley's arresting officer; Ashley Neubauer, a Boyertown Ambulance Paramedic who transported Wertz to the hospital on March 29, 2019, after she was found in cardiac arrest; Donald Ellixson, Wiley's Tae Kwon Do instructor; Xavier Wertz, Farrah Wertz's son; Julia Dennis, Farrah Wertz's friend; and Wiley. Wiley's testimony primarily concerned an audio recording, which captured the audio of the assault on March 11, 2019. The Commonwealth chose not to cross-examine Wiley at the hearing.
Additionally, on January 5, 2021, the trial court denied Wiley's pretrial motion to preclude the admission of the audio recording of the assault, see supra at n.6, and denied Wiley's pretrial motion for writ of habeas corpus as to the charge of involuntary manslaughter.
The Commonwealth filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The Commonwealth raises the following issue for our consideration: "Did the trial court err in granting the [w]rit of [h]abeas [c]orpus for murder in the third degree where the Commonwealth met its prima facie burden by proving that Wiley assaulted the victim with malice, causing injuries which led to her death?" Commonwealth's Brief, at 4.
"It is well-established that the Commonwealth may appeal from a trial court's order dismissing a felony charge based on a pre-trial petition for writ of habeas corpus." Santos, 876 A.2d at 362 n.6.
"A trial court may grant a defendant's petition for writ [of] habeas corpus where the Commonwealth has failed to present a prima facie case against the defendant." Santos, 876 A.2d at 363. "'A prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense.'" Id. (quoting Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003)). "[T]he Commonwealth does not have to prove the defendant's guilt beyond a reasonable doubt. Further, the evidence must be considered in the light most favorable to the Commonwealth[, ] so that inferences that would support a guilty verdict are given effect." Santos, 876 A.2d at 363.
"In reviewing a trial court's order granting a defendant's petition for writ of habeas corpus, we 'must generally consider whether the record supports the trial court's findings, and whether the inferences and legal conclusions drawn from those findings are free from error.'" Id. (quoting Commonwealth v. Hock, 728 A.2d 943, 945 (Pa. 1999)). "[I]t is settled that the evidentiary sufficiency, or lack thereof, of the Commonwealth's prima facie case for a charged crime is a question of law as to which an appellate court's review is plenary." Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005) (citations omitted). "[T]he trial court is afforded no discretion in ascertaining whether, as a matter of law and in light of the facts presented to it, the Commonwealth has carried its pre-trial prima facie burden to make out the elements of a charged crime." Id. at 513. "[W]e are not bound by the legal determinations of the trial court." Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016).
Instantly, the trial court granted Wiley's motion for writ of habeas corpus, concluding that the Commonwealth failed to provide sufficient evidence of malice to sustain the charge of third-degree murder. The Commonwealth argues on appeal that it presented prima facie proof that Wiley acted with malice where Wiley performed a leg sweep on Wertz, causing her to suffer an ankle injury that eventually led to her death.
"[T]o convict a defendant of the offense of third-degree murder, the Commonwealth need only prove that the defendant killed another person with malice aforethought." Santos, 876 A.2d at 363. "[M]alice 'comprehends not only a particular ill-will, but . . . [also a] wickedness of disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.'" Id. (quoting Commonwealth v. Ludwig, 874 A.2d 623, 632 (Pa. 2005)). "[L]egal malice may be inferred and found from the attending circumstances." Commonwealth v. Commander, 260 A.2d 773, 776 (Pa. 1970). "[A]bsence of specific intent to kill is not an element of third-degree murder; rather, such crime is an intentional act, characterized by malice, that results in death, intended or not." Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013).
"'Where malice is based on a reckless disregard of consequences, it is not sufficient to show mere recklessness; rather, it must be shown [that] the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury.'" Commonwealth v. Bruce, 916 A.2d 657, 664 (Pa. Super. 2007) (quoting Commonwealth v. Kling, 731 A.2d 145, 148 (Pa. Super. 1999). Accordingly, the Commonwealth must establish two elements under the standard: (1) that there was an unjustified and extremely high risk that a defendant's actions might cause death or serious bodily harm to the victim, and (2) that the defendant had a conscious disregard for that risk.
In the context of malice, "[a] defendant must display a conscious disregard for almost certain death or injury such that it is tantamount to an actual desire to injure or kill; at the very least, the conduct must be such that one could reasonably anticipate death or serious bodily injury would likely and logically result." Commonwealth v. Kling, 731 A.2d 145, 148 (Pa. Super. 1999). Serious bodily injury is defined by the Crimes Code as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa.C.S.A. § 2301.
[T]he mens rea required for both third-degree murder and aggravated assault are the same, malice; "only the result of the crimes differ." Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017). See Commonwealth v. O'Hanlon, 653 A.2d 616, 618 (Pa. 1995) ("Aggravated assault is, indeed, the functional equivalent of a murder in which, for some reason, death fails to occur.").
It is well-established that "malice may be inferred from the use of a deadly weapon on a vital part of the body." Commonwealth v. Seibert, 622 A.2d 361, 364 (Pa. Super. 1993). Moreover, in the absence of a weapon, malice can be inferred from the surrounding circumstances, "such as the assailant's size," the manner of the attack, "the ferocity and duration of the attack, and provocation, if any." Commonwealth v. MacArthur, 629 A.2d 166, 168 (Pa. Super. 1993). However, "a single blow, without a weapon, is, ordinarily, not sufficient to establish malice." Id. (emphasis added).
Here, we agree with the trial court that Wiley's actions did not amount to a reckless disregard of consequences. Bruce, supra; Kling, supra. Though the Commonwealth may have presented sufficient evidence to prove a prima facie case under the first prong of the Bruce test, it failed to present enough evidence to satisfy the second prong.
Because both prongs of the Bruce test must be proven by the Commonwealth, Wiley's claim fails. However, we acknowledge that, based on the record, the Commonwealth presented prima facie evidence of the second prong of Bruce -that there was an "unjustified and extremely high risk that his actions might cause death or serious bodily injury" to Wertz. Bruce, 916 A.2d at 664. During the habeas hearing, Wiley's Tae Kwon Do instructor, Donald Ellixson, explained the dangerous consequences of a leg sweep, stating, "ankles can get twisted or broken, knees can get twisted and broken, and[, ] worst-case[, ] head or neck trauma from being taken down incorrectly." N.T. Omnibus Pretrial Hearing, 2/12/20, at 55. These injuries fall squarely within the definition of "serious bodily injury" under the Crimes Code as twisted or broken ankles, twisted or broken knees, and head or neck trauma are injuries that "impair [] the function of any bodily member or organ." 18 Pa.C.S.A. § 2301.
Specifically, the Commonwealth's evidence does not prove a prima facie case that Wiley had a conscious disregard for the risk associated with performing a leg sweep. At best, the Commonwealth's evidence only shows that Wiley had a general awareness that leg sweeps are unsafe and that he had some prior martial arts experience. Additionally, the Commonwealth's evidence does not allow for an inference of malice from Wiley's single blow to Wertz's ankle.
The Commonwealth's evidence does not prove a prima facie case that Wiley had a conscious disregard for the risk associated with performing a leg sweep. Ellixson's testimony was not sufficient to prove that Wiley was conscious of the unjustified and extremely high risk associated with performing a leg sweep. While Ellixson testified that he informed Wiley that leg sweeps are unsafe and should not be used, see N.T. Omnibus Pretrial
Hearing, 2/12/20, at 54-55, Ellixson did not state whether he informed Wiley of the types of injuries leg sweeps can easily cause. Rather, Ellixson merely listed the injuries that leg sweeps cause in explaining to the prosecutor why he tells his students that leg sweeps are unsafe. Id. Thus, the Commonwealth did not present prima facie proof that Wiley knew that leg sweeps can very easily cause twisted knees, twisted ankles, and head or neck trauma based purely on Ellixson's simple statements conveying that leg sweeps are unsafe and should not be used. Accordingly, Wiley's general knowledge that leg sweeps are unsafe is not the equivalent of knowing the unjustified and extremely high risks leg sweeps pose.
Further, the Commonwealth's evidence did not show whether Wiley knew of the unjustified and extremely high risk posed by leg sweeps from his past experiences. Ellixson testified that Wiley claimed to have had prior martial arts experience, id. at 57, but the scope of Wiley's experience was never established. Ellixson also stated that Wiley "implied that he was an advanced martial artist," id. at 58, based on the sole fact that Wiley "didn't seem too happy" when Ellixson informed him that he had to start as a beginner in his Tae Kwon Do classroom and learn the curriculum from the start. Id. at 58. Lastly, when Ellixson observed Wiley in Tae Kwon Do class, he determined that Wiley only had "some experience" with martial arts, whether it was with Tae Kwon Do or a similar martial art. Id. at 59. These statements do not provide prima facie evidence that Wiley was an advanced martial artist or show that Wiley had anything beyond a general knowledge that leg sweeps are unsafe. Thus, the Commonwealth's evidence does not present a prima facie case that Wiley exhibited recklessness of consequences through a conscious disregard for the risk associated with leg sweeps.
Finally, the Commonwealth's evidence does not present prima facie proof that Wiley acted with malice because Wiley used only his leg to inflict a single blow to a non-vital part of Wertz's body. See MacArthur, 629 A.2d at 168. Cf. Seibert, 622 A.2d at 365-67 (finding Commonwealth's evidence sufficient to imply malice necessary for third-degree murder conviction where defendant aimed firearm at victim's head); Commonwealth v. Moore, 412 A.2d 549, 551 (Pa. 1980) (malice inferred for purposes of third-degree murder conviction where victim suffered injuries to head, shoulder, and torso from "defendant administer[ing] a severe beating even after victim was rendered helpless"); Commonwealth v. Buzard, 76 A.2d 394, 395 (Pa. 1950) (finding sufficient evidence of inferred malice for third-degree murder conviction where defendant threw victim to ground and punched victim repeatedly and kicked him once); Commonwealth v. Dorazio, 74 A.2d 125, 127 (Pa. 1950) (finding sufficient evidence of inferred malice to affirm third-degree murder conviction where defendant stood over victim and hit victim in head more than ten times). See also Commonwealth v. Thomas, 594 A.2d 300, 302-03 (Pa. 1991) (describing Moore, Buzard, and Dorazio as collection of cases finding sufficient evidence of malice for third-degree murder where larger, more powerful defendants committed "brutal, prolonged, persistent, ferocious assaults" to vital parts of victims' bodies).
The facts of the instant case are akin to those in MacArthur, supra, where, amidst an oral argument on the defendant's front porch, the defendant pushed the victim, causing him to fall over a railing and land on stairs. Id. In that case, this Court concluded that: (1) the victim's injury "was the tragic[, ] but improbable[, ] result of a single push;" (2) there was nothing in the record supporting an "inference of malice leading to a verdict of murder in the third degree;" and (3) the "evidence simply d[id] not warrant the inference of legal malice, which was justified in Moore, Buzard and Dorazio." Id.
Instantly, like in MacArthur, Wiley's actions did not amount to a brutal, prolonged, and ferocious assault to a vital part of Wertz's body. Rather, Wiley delivered a single leg sweep, during an altercation that was short in duration, and that was directed at Wertz's ankle, a non-vital part of the body. Cf. Commonwealth v. Patrick, 933 A.2d 1043, 1047 (Pa. Super. 2007) (finding Commonwealth presented sufficient evidence of recklessness to establish prima facie case for aggravated assault where defendant's surprise punch to victim's temple "knocked [] defenseless and unsuspecting victim off of feet without reflexive protection, causing victim to strike his head on concrete").
While the attack in Patrick was a "surprise attack" on a "defenseless and unsuspecting victim," 933 A.2d at 1047, here the Commonwealth did not present sufficient evidence suggesting Wiley conducted a surprise attack on a defenseless and unsuspecting victim. Affidavit of Probable Cause, 4/4/19, ¶ 4. Though Wertz alleged that Wiley leg swept her from behind, see Affidavit of Probable Cause, 4/4/19, ¶ 4, the Commonwealth presented no evidence at the habeas corpus hearing indicating that Wiley leg swept Wertz from behind. Rather, the Commonwealth's brief merely states that "Wiley 'leg swept' [] Wertz during a heated argument and broke her ankle." Commonwealth's Brief, at 8. Additionally, during a recorded interview between Wiley and two police detectives on April 6, 2019, Wiley was adamant that he did not leg sweep Wertz from behind. Finally, the trial judge's findings of fact reveal that Wiley "swept [Wertz's] feet from underneath her" without mentioning whether Wiley did so from behind Wertz. Trial Court's Findings of Fact, 1/5/21, at 3.
Accordingly, because there was insufficient evidence to establish a prima facie case for third-degree murder, we conclude that the record supports the trial court's findings and that the court's inferences and legal conclusions drawn from those findings were not in error. Hock, supra; Santos, supra. Thus, we affirm the trial court's order granting Wiley's motion for writ of habeas corpus and dismissing the charge of third-degree murder.
After listening to the audio recording of the assault, the trial court determined that Wiley's state of mind did not reach the level of malice because he was remorseful after the incident. Trial Court Opinion, 5/7/21, at 3. We carefully reviewed the audio recording and likewise heard Wiley express remorse after Wertz was injured by offering to examine Wertz's ankle for signs of damage, attempting to help Wertz up off the ground, placing ice on Wertz's ankle, and apologizing to her. Commonwealth Exhibit No. 10. However, malice is based on a defendant's state of mind at the time of the offense, not after. See Commonwealth v. Tillia, 518 A.2d 1246, 1254 (Pa. Super. 1986) (noting, in context of malice, "[w]hether or not [an] appellant expressed remorse is irrelevant to the determination of guilt"). In any event, we still affirm the trial court's dismissal of Wiley's third-degree murder charge where, as discussed supra, the Commonwealth's evidence does not (1) prove a prima facie case that Wiley had a conscious disregard for the risk associated with performing a leg sweep; and (2) allow for an inference of malice from Wiley's single blow to Wertz's ankle. See Commonwealth v. Thompson, 778 A.2d 1215, 1223 n.6 (Pa. Super. 2001) ("It is well settled that we may affirm on different grounds.").
Order affirmed.
Nichols, J., concurs in the result.
Stevens, PJE, files a Dissenting Memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
STEVENS, P.J.E.:
Appellee, during a heated argument with the victim, used a violent karate maneuver known as a "leg sweep" causing the victim's fall to the ground and resulting death.
The Majority affirms the trial court's granting of Appellee's motion for writ of habeas corpus on the basis that the Commonwealth failed to provide sufficient evidence of malice to sustain the charge of third-degree murder. In doing so, the Majority posits "Appellee's general knowledge that leg sweeps are unsafe is not the equivalent of knowing the unjustified and extremely high risks leg sweeps pose." I respectfully dissent and would reverse the trial court's grant of Appellee's motion for a writ of habeas corpus.
At this stage of the proceedings the Commonwealth simply needed to present a prima facie case in support of this charge. The Commonwealth did so when it established Appellee knew that leg sweeps are unsafe and employed this violent karate maneuver against the victim, Ms. Wertz, which ultimately caused her death.
"Third-degree murder occurs when a person commits a killing which is neither intentional nor committed during the perpetration of a felony but contains the requisite malice." Commonwealth v. Akhmedov, 216 A.3d 307, 322 (Pa. Super. 2019), appeal denied, 224 A.3d 364 (Pa. 2020) (citation omitted). "Malice is a legal term, which encompasses not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured." Id. (citation omitted) (emphasis added). "Malice may be found where the actor consciously disregards an unjustified and extremely high risk that the actor's conduct might cause death or serious bodily injury." Id. (citation omitted) (emphasis added).
Although his level of expertise is disputed and will be at issue for the factfinder, it is undisputed that prior to March 11, 2019, the date upon which Appellant swept Ms. Wertz's leg, Appellee was a self-described, experienced martial artist who had taken Tae Kwon Do classes with instructor Donald Ellixson for three months. As a martial artist, Appellee was taught techniques designed to improve his self-defense, self-discipline, and confidence. As part of his instruction, Ellixson informed each student in his classes that a leg sweep was an unsafe maneuver that was not to be performed.
Yet, Appellee chose to disregard his prior training and Ellixson's specific warnings and performed a leg sweep knocking Ms. Wertz to the ground. Malice can be inferred from the surrounding circumstances, see Akhmedov, supra, and for the purposes of proving a prima facie case, it is reasonable to infer malice from Appellee's actions.
Appellee did not merely shove or push Ms. Wertz. Rather, Appellee used an unsafe karate maneuver sweeping her legs out from under her, causing a violent impact with the ground. He was familiar with the maneuver which his instructor had warned him was unsafe and not to be used, thereby showing a reckless of consequences as well as his conscious disregard of an unjustified and extremely high risk that he would cause death or serious bodily injury to Ms. Wertz.
Thus, the set of facts presented herein is distinguishable from Commonwealth v. Macarthur, 629 A.2d 166 (Pa.Super. 1993) upon which the Majority relies. In Macarthur there was a bench trial, and the standard of proof was beyond a reasonable doubt, not prima facie. Moreover, the facts were fully developed, and a finder of fact rendered a decision. For example, it was established that during a brief altercation, the defendant "pushed the bigger man away," and the victim lost his balance, somersaulted backwards over a railing, fell down five steps, and landed on the back of his neck; he died a short time thereafter due to injuries sustained in the fall. Id. at 414.
Here, unlike the facts in Macarthur, Appellee, a male and trained martial artist, maliciously used a violent karate maneuver to take down his girlfriend, who was a foot shorter and about forty-five pounds lighter, during a heated argument at which time he was told to move out of the couple's home. For this reason, a fact finder can hold Appellant guilty of third-degree murder.
The Majority stresses "Appellee used only his leg to inflict a single blow to a non-vital part of Wertz's body." However, in doing so, the Majority effectively is making a factual determination that is properly reserved for the finder of fact at trial. While there is case law that a single blow without a weapon, generally, is insufficient to establish third degree murder, see Macarthur, supra at 414, a jury can conclude Appellee's leg sweep in this case is an unsafe maneuver in the martial arts precisely because of the dangerous risk of injury it carries.
Moreover, as the Majority notes, the trial court concluded Appellee did not have the necessary malice because he showed remorse after the incident; however, such considerations are irrelevant as to his state of mind at the time of the leg sweep. See Akhmedov, supra.
For these reasons, respectfully, I would reverse the trial court's order granting Appellee's motion for writ of habeas corpus and dismissing the charge of third-degree murder and remand the case for trial on all charges.
[*] Former Justice specially assigned to the Superior Court.